Consumer Advocates for RCFE Reform

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Frequently Asked
Questions

Frequently Asked Questions

The Evaluator's Manual Transmittal No. 09RM-18, 3-4200, dated 11/2009 states that a "Type A: Immediate Health, Safety or Personal Rights Impact - are violations of the regulations, and the Health and Safety Code that, if not corrected, have a direct and immediate risk to the health, safety or personal rights of those in care."

Pursuant to Transmittal No 09RM-18 dated 11/2009, §3-4200, a "Type B: Potential Health, Safety or Personal Rights Impact - Violations of the regulations and the Health and Safety Code that, without correction, could become an immediate risk to the health, safety or personal rights of clients, or record keeping violation that would impact the care of clients and/or protection of their resources, or a violation that would impact those services required to meet clients' needs."

The Self-Assessment Guide, "Facility Evaluation Process" "Technical Support Program" (TSP 9/02) describes a Type C violation as one that does "not present an immediate or potential threat to the health, safety or personal rights of clients/residents in care and where the Licensee has maintained substantial compliance with regulations. "

Community Care Licensing (CCLD) is required to inspect each Residential Care Facility for the Elderly (RCFE) periodically (Title 22, §87756 (d)). CCLD is also obligated to visit (unannounced) approximately 20% of the facilities within its jurisdiction, annually (Title 22, §87756(c). Other reasons for unannounced visits may include, but are not limited to, the following:

The Licensee is on probation,

An accusation against a Licensee is pending (i.e. a complaint has been reported)*,

When the terms of a compliance plan require an annual evaluation (i.e a visit is necessary to verify compliance on a deficiency issue),

When the facility requires an annual visit as a condition of receiving federal financial participation, and

To ensure a person who has been ordered out of an RCFE, is no longer at the facility.

The Inspection report is called Facility Evaluation Report (Form LIC 809). The LIC 809 is the "primary paperwork used to document the level of facility compliance" (§3-3010 - Evaluator's Manual 10RM-12, August 2010). The Facility Evaluation Report is a Public Document available in the public file.

In 2017, CCL inspected RCFEs approximately once in 3 years, in 2018 required inspections will be once in 2 years, and commencing in 2019, inspections will move to annual. Prior to 2017, the state was inspection just once in 5 years.

In 2014 legislation was passed which increased civil penalties. The result of these new laws is that fines are generally higher than before the legislation; for instance, the civil penalty for causing the death, sickness or injury to a resident was increased from $150 to $15,000. Civil penalties can also be issued for failing to timely correct deficiencies. Civil Penalties can also be assessed for facility violations which are considered "Zero Tolerance" violations: having accessible bodies of water, accessible firearms, refusing to allow inspections by CCLD's inspectors, fire safety issues, and presence of an excluded individual (a person with criminal convictions and for which an exception cannot be granted)

Title 22, §87761 holds additional detail for understanding the Civil Penalties that can be assessed.

"Upon receipt of a complaint, . . . the department shall make a preliminary review and . . . an onsite inspection within 10 days after receiving the complaint except where the visit would adversely affect the licensing investigation or the investigation of other agencies, including, but not limited to, law enforcement agencies . . ." (Title 22, §87755)

[This only means CCL has to initiate the complaint investigation - not complete it and report findings to the complainant - with 10 days.]

A Criminal Record Clearance is defined in Title 22, §87101 (c)(18): ". . . an individual has a California clearance [through the California's Department of Justice] and a FBI clearance." All Licensees, employees, volunteers and individuals (other than residents) residing in the facility must be fingerprinted and cleared before having a presence in a Residential Care Facility for the Elderly (RCFE). Failure to do so may result in a Civil Penalty.

A Type A violation is considered the most serious type of deficiency. It is described as a deficiency that "poses an immediate or substantial threat to the health, safety and/or rights of the residents if not corrected". Examples cited in Title 22 "include, but are not limited to", the following issues:

During CARR's file review and review of the regulations, we've noticed that facilities receiving a Type A citation receive no other consequence than to create and adhere to a plan of correction.

Title 22 authorizes LPAs to issue a penalty of $50 per day (maximum up to $150), per cited violation only if the violation is not corrected by the date specified in the plan of correction. Based on CARR's file review, this practice is rare. Very often there was no documentation of any follow-up visits to verify if the corrections had taken place. More common, the file contained a faxed transmittal or mailed-in letter of self-certifying through receipts, photographs or letters of promise that the corrections had been made. CCLD also provides a LIC 9098 allowing a Licensee to self-certify that corrections have been made; with a self-certification in hand, the LPA is saved a return trip to the facility to validate the correction has been made.

Of the Type A citations listed above, it appears violations of criminal record clearances most consistently resulted in civil penalties ($100/day). For all other common Type A citations, civil penalties were rarely, if ever assessed.

CARRsuggests consumers be watchful for repeated citations for violation of the same regulation - from one inspection to the next. These patterns should be discussed to your satisfaction with the Licensee if you are considering the facility for placement of your resident.

Per Title 22, §87101(f)(2), "Federal Bureau of Investigation (FBI) clearance" ". . . means an individual has no felony or misdemeanor convictions reported by the Federal Bureau of Investigation. The individual may also have been arrested with no criminal conviction, convicted of a minor traffic offense or adjudicated as a juvenile."

Receiving an FBI clearance is a component of receiving a Criminal Record Clearance, required for Licensees, employees, volunteers, and other individuals (who are not residents) residing in the facility, prior to having a presence in the facility.

A deficiency is defined by Title 22 as "any failure to comply with any provision of the act governing RCFEs and any other applicable regulations".

If a deficiency is found during an evaluation,LPAs are required to issue a notice of deficiency. However, if the deficiency is deemed minor and is corrected during the visit a notice of deficiency need not be issued according to Title 22.

If a deficiency is noted, the LPA must meet with the person in charge of the facility and discuss the noted deficiencies and together they must develop a plan for correcting each deficiency. The plan of correction must then be included on the notice of deficiency. The notice is then signed by both parties and should then be posted in a conspicuous location in the facility.

Viewing deficiencies

Copies of all notices of deficiencies are kept at the facility (as well as at CCLD in the facility's individual file).